Rivera v. United States

Opinion

Southern District Federal Defenders 52 Duane Street-10th Floor, New York, NY 10007 OF NEW YORK, INC. Tel: (212) 417-8700 Fax: (212) 571-0392

David E. Patton Southern District of New York Executive Director Jennifer L. Brown Attorney-in-Charge

August 23, 2021 Application granted. Counsel is BY ECF directed to provide the Court with a TW. . status update, to the extent there is on Honorable Cathy Seibel by November 12. 2021 United States District Judge y ° , Southern District of New York 300 Quarropas St. SO ORDERED. White Plains, NY 10601 / f) □□□ Re: United States v. Jose Rivera, 12 Cr. 169 (CS) CATHY S IBEL USDI Jose Rivera v. United States, 16 Cv. 4983 (CS) □ 8/23/2021 Dear Judge Seibel, I write to provide an update regarding Mr. Rivera’s pending motion under 28 U.S.C. § 2255 based on Johnson v. United States, 135 8S. Ct. 2551 (2015) and in response to the Court’s Order of August 9, 2021 (Dkt. No. 30). After the Second Circuit granted Mr. Rivera’s motion for leave to file a successive petition and transferred the proceedings back to the District Court, Dkt. No. 27, this Court continued to stay the motion until the Circuit resolved whether attempted Hobbs Act robbery is a crime of violence, Dkt. No. 29. On August 9, 2021, this Court pointed out that the Second Circuit ruled on the question of whether attempted Hobbs Act robbery is a crime of violence for the purpose of 18 U.S.C. § 924(c) in McCoy, 995 F.3d 32 (2d. Cir. 2021), but that no defense brief was filed. See Dkt. No. 30. Because there is a split among the Circuits, that same question is now pending before the United States Supreme Court in United States v. Taylor, No. 20-1459, 2021 WL 2742792, at *1 (U.S. July 2, 2021). Thus, we request that this Court continue the instant stay until the Supreme Court’s disposition of Taylor. Other courts have granted similar requests. See, e.g., United States v. Parkes, 21-1324 (2d Cir. Jun. 16, 2021);

1 The docket citations correspond to the criminal case number, 12 Cr. 169 (CS).

United States v. Padilla, 94 Cr. 313 (CSH), Dkt. No. 917 (S.D.N.Y. Jul. 20, 2021); United States v. Bernard, 98 Cr. 500 (FB), Dkt. No. 531 (and corresponding electronic order) (E.D.N.Y. May 28, 2021). Thank you for your consideration. Respectfully submitted, /s/ Sylvie Levine Assistant Federal Defender 212-417-8729